Negotiability

Association of Civilian Technicians, Montana Air Chapter No. 29 and U.S. Department of Defense, National Guard Bureau, Montana National Guard, Helena, Montana, 56 FLRA No. 111 (2000), the Authority addressed a proposal determining the order in which bargaining unit employees were listed on retention registers for release during a reduction-in-force. The Agency claimed that the proposal, which would establish a seniority-based retention system, conflicted with an Agency regulation for which there was a compelling need. According to the Agency, its regulation established retention standing based on performance alone. The Authority held that in order to demonstrate that a proposal is outside the duty to bargain based on a conflict with an Agency regulation, the Agency must identify a specific Agency regulation, show a conflict between the regulation and the proposal, and demonstrate that the regulation is supported by a compelling need as defined in the Authority's Regulations. While, in this case, the Agency established both the existence of an Agency regulation and a conflict between the regulation and the proposal, the Authority found that the Agency failed to establish that there was a compelling need for the regulation so as to bar negotiations. In particular, the Agency failed to demonstrate that its regulation was essential to the accomplishment of the Agency's mission, was necessary to ensure the maintenance of merit principles, or that it implemented a nondiscretionary mandate under law. Consequently, the Authority concluded that the proposal was within the duty.

In United States Patent and Trademark Office, 57 FLRA No. 45 (2001), a decision consolidating two unfair labor practice complaints, the Authority held that the Agency violated § 7116(a)(1) and (5) by, among other things, refusing to bargain over union-initiated proposals concerning performance appraisals and compensation. The Authority first discussed the parties' long history of bargaining a term agreement, including the issue of performance appraisals. In that regard, the Authority noted that the parties were in dispute as to whether a term agreement was in effect at times relevant to the case at hand. The Authority agreed with the Agency's contention that no term agreement was in effect, but rejected the Agency's argument that under that circumstance it was under no obligation to bargain over union-initiated proposals. The Agency had argued that without an agreement it would be obligated to bargain over union-initiated proposals only in the context of negotiations for a term agreement or in response to management-initiated changes. However, citing AFGE v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997), the Authority held the obligation to bargain is not so limited and that an agency is obligated to bargain over any negotiable union-initiated proposals submitted outside the term of an existing collective bargaining agreement. Finding that the Agency illegally refused to bargain, the Authority ordered the Agency to bargain and to give any agreement reached retroactive effect. (Judicial review pending in the D.C. Circuit.)

In NFFE, Local 1904, 57 FLRA 28 (2001), the Authority held that a proposal concerning "patient accountability" was negotiable as an appropriate arrangement under § 7106(b)(3) of the Statute. In response to management's decision to hold nurses responsible for verifying the location of patients admitted to the nurses' assigned wards, the Union proposed that patients with a high risk of wandering be given "wander guard bracelets." Wander guard bracelets are monitoring devices that are attached to patients and electronically notify nurses when the patient leaves the ward or unit to which the patient is assigned. The parties agreed that the proposal interfered with the Agency's right to determine internal security practices. The Authority first held that the increased potential for lowered performance appraisals resulting from additional responsibilities constituted an adverse effect within the meaning of § 7106(b)(3), and that the use of wander guard bracelets was intended as an arrangement to compensate for that effect. In addition, the Authority held that the arrangement was sufficiently tailored because it would benefit only those nurses assigned high risk patients. Applying the framework established in NAGE, Local R14-87, 27 FLRA 24 (1986), the Authority held that the proposal would not excessively interfere with management's internal security right. In that regard, the Authority held that the affected employees would benefit significantly from the proposal and that the burden on the Agency was slight. With respect to the Agency's burden, the Authority noted that the Agency already used wander guard bracelets in other units and that the use of wander guard bracelets did not preclude the Agency from holding nurses accountable for patient location. The Authority ordered the Agency to bargain, upon request, over the Union's proposal.

In National Treasury Employees Union and U.S. Department of Commerce, Patent and Trademark Office, 52 FLRA No. 117 (Chair Segal concurring in part), the Authority addressed the negotiability of three proposals and seven provisions. Among other things, the Authority held that a provision that authorized Union representatives to schedule their use of official time was not contrary to law and was within the duty to bargain. The Authority rejected the Agency's argument concerning official time as a "restrictive interpretation of section 7131(d)" because it would upset the balance of official time usage that Congress intended to create. In doing so, the Authority interpreted section 7131(d) as requiring parties to negotiate over the scheduling of official time used by union representatives to afford both sides an opportunity to determine the conditions under which employees will be able to use official time. The Authority noted that restrictions on official time are properly imposed by the parties themselves, who are authorized to negotiate only an amount of time that is "reasonable, necessary, and in the public interest."

 

Negotiability of Setting Performance Standards